U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINTON, DC 

# RECEIVED JAN 232017
Inthe Matter of: FELTS FIELDAVIATION Respondent ) ) ) ) )



## _______________________ ) 

## HEARING DOCKET DocketNo: FAA-2015-3307 CaseNo: 2015WP910090 Judge J.E. Sullivan
RESPONDENT'S MOTION TO DISMISS The Respondent, Felts Field Aviation, by and through its attorneys, BENJAMIN L. WYBORNEY andMARKJ. CONLIN, move the Court for an Orderto Dismiss in the abovereferenced matter.

GROUNDS The Complainant, the FAA, is withholding "howthe FAA calculated its proposed civil penalty
..."inviolation ofthis Court's December 15, 2016 verbal Order to Produce by January 17, 2017, See Exhibit A, Transcript of Teleconference on December 15, 2016, Page 64, Lines 11-16, Page 66, Lines 12-13, and Page 67, Lines 2-6.

BASIS On September 22, 2015, the FAA, Northwest Mountain Region, ANM-7 (hereafter "FAA") servedthe underlying Complaint onthe Respondent'sAttorney. On October 8, 2015, the Respondent's Attorney timely served an Answer on the FAA.

MOTIONTO DISMISS Inthe Matter ofFelts Field Aviation, Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 Page 1of7 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 99201 (509) 624-3020

### On October 13, 2015, the Respondent's Attorney served the Respondent's First Set oflnterrogatories and Requests for Production ofDocuments by CertifiedMail on the FAA. 

### On December 1, 2015, this Court issued an Order setting the Litigation Scheduling Conference for February 9, 2016. On February 9, 2016, the FAA failed to appear, without explanation, for the Scheduling Conference. See Transcript of Teleconference Hearing held February 9, 2016, Page 4, Line 17. The Respondent's Attorney moved for a dismissal on the grounds that the FAA had failed to comply with this Court's December 1, 2015 Order and appearedto have abandoned the prosecution ofthe above captioned matter. See id. Page 7, Line 20. On February 10, 2016, this Court issued a Show Cause Order ordering that the Motionto Dismiss was reserved and setting February 25,2016 as the FAA's ShowCause Deadline. OnFebruary 23,2016,the FAA respondedto the Show Cause Order. OnFebruary 24, 2016, this Courtissued an OrderFinding Good Cause and setting
a second Scheduling Conference for April 14, 2016. On April 14, 2016, this Court issued an Order Setting Litigation Dates and Procedures. That Order set April 29th 

### as the date to Begin General Discovery, if not previously begun, June 301 h 

### as the FAA Expert Disclosure Deadline, July 14th 

### as the RespondentExpert Disclosure Deadline, and August 301 h 

### as the Deadline for Completing General Discovery.

MOTIONTO DJSMJSS Inthe Matter ofFelts Field Aviation, Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 Page 2 of7 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 99201 (509) 624-3020

### On July I, 2016, due to the lack ofresponse to Interrogatories and the FAA's failure to make timely clisclosure ofExpert Witnesses, the Respondent filed a Motion to Dismiss orIn the Alternative, Request an Informal Conference. On July 7, 2016, this Court issued an Order acknowledging the FAA's Substitution ofCounsel and Setting an Informal Conference for July 12th. The FAA's original attorney had separated from the FAA. The FAA substituted Ms. Stokley onJuly 1, 2016. On July 11, 2016; 272 days after the Oct 13, 2015 date of service of the Respondent's First Set ofInterrogatories and Request for Production ofDocuments, 11 days after the June 30th Expert Witness Disclosure deadline, and one day priorto the July 12'h Informal Conference on the matter, the FAA served the Respondent with the FAA's Response to the Respondent's First Set ofInterrogatories and Request for Production of Documents. In that Response, the FAA identified Mr. Eric Wells as a Testifying Expert Witness, presented aheavily redacted Enforcement Investigative Report (EIR) as Exhibit C-1, andpresentedMr. Wells Expert OpinionReport as ExhibitC-2. On July 12, 2016, this Court held an Informal Conference to address the Respondent's discovery concerns. The Respondent's concerns originally included the lack ofany answerto interrogatories, the lack ofdisclosure ofexperts, andthe difficulties meeting discovery deadlines induced by the FAA's lack ofresponsiveness. In response to the FAA's untimely Response to Interrogatories, the Respondent's concerns now included, the untimely disclosure of an Expert Witness, the unreasonable redactions in Exhibit C-1, "Statement ofthe Case," and the difficulties meeting discovery deadlines inducedbytheFAA. MOTIONTODISMISS In the Matter ofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 CaseNo. 2015WP910090 Page 3 of7 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, W A 9920I (509) 624-3020

### On July 14, 2016, this Court issued an Order finding sufficient time remained to avoid prejudicing the Respondent and allowed the FAA's Testifying Expert Witness. That Orderalso required thatthe FAAprovide either a modifiedredacted copy ofExhibit C-1 or a privilege log justifying the redactions to the current Exhibit C-1 by July 22, 2016. Finally, the Order also extended General Discoverybytwo weeks from August 30, 2016to September 16, 2016. On July 20, 2016, the FAA, through its July 201 h 

### Supplemental Response to Respondent's First Set of Interrogatories and Requests for Production of Documents, provided both a modified redacted version of Exhibit C-1 (hereinafter "Supplemented Exhibit C-1) and aprivilege log. The Supplemented Exhibit C-1 contained an additional four pages of documents. The four additional pages of documents contained the first page ofthe EIR which is a (FAA) FORM 2150-5 EA, and three pages ofvery heavily redacted supplemental information. The FORM 2150-5 indicated that, while Ms. Simone Clinton is the reporting Inspector, Mr. Eric Wells, the FAA's Expert Witness, is the signatory ofthe EIR as the "Team Coordinator." FurtherMr. Eric Wells, the Expert Witness, is also the signatory of the EIR's Regional Division Review as the Approving Official. The EIR is essentially the research product of the FAA's Expert Witness, containing his "facts known, or opinions held". The Respondent found the Supplemented Exhibit C-1 and the privilege log generally inadequate. OnAugust 9, 2016, based on its right to discover "facts known, or opinions held, by" aTestifying ExpertWitness, and otherdiscovery rights, the Respondentrequested, in writing, a more compliantversion ofSupplementedExhibitC-1. The FAA refused. MOTION TO DISMISS In the Matter ofFelts Field Aviation, Inc. DocketNo. FAA-2015-3307 CaseNo. 2015WP910090 Page 4 of7 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 9920I (509) 624-3020

### On September 13, 2016, based on the fact that the EIR is the research and investigative product ofthe Expert Witness, and that pursuant to 14 C.P.R. § 13.220(e) Scope ofdiscovery., "
... [a] party may discover facts known, or opinions held, by an expert who any otherpartyexpects to call to testifY at the Hearing", the Respondent again requested, inwriting, an unredacted copy ofthe EIR. The FAAagainrefused. On September 16, 2016, the Respondent moved this Court for an Order to Compel Discovery ofamore compliantversion ofSupplementedExhibit C-1. On September 23, 2016, the FAA submitted an Opposition to the Respondent's Motionto Compel. On September 30, 2016, the Respondent submitted a Reply to the FAA's Oppositionto the Respondent's Motionto Compel. On November 10, 2016, this Court conducted a Motion Conference on the Respondent's Motion to Compel. This Court continued the Motion Conference to December 15, 2016 On November 14, 2016, this Court issued an Order that continued the Motion Conference to December 15, 2016. The Order further required that all parties read the decision issued in Airborne Maintenance and Engineering Services, FAA-2013-0291, 2014 WL 4635559 (FAA Aug. 19, 2014), and that after reading the material, the parties should contact each other and determine whether they might be able to agree to the various discoveryrequests. On November 21, 2016, the FAA, through its November 21'1 

### Supplemental Response to Respondent's First Set of Interrogatories and Requests for Production of Documents withdrew, without substitution, its Testifying Expert Witness, Eric Wells. MOTIONTO DISMISS In the Matter ofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 CaseNo. 2015WP910090 Page 5 of7 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 99201 (509) 624-3020Mr. 

### Wells is the same untimely identified Testifying Expert Witness that this Court specificallyallowed in its July 14th

### Order. OnNovember 30, 2016, 

### at the Respondent's Attorneys' request and initiation, the Respondent's and FAA's Attorneys held a Telephonic Conference in which the FAA confirmed that the FAA would not change its position on the discoverability ofa more compliantversion ofSupplementedExhibit C-1. On Dec 7, 2016, 

### in light ofthe FAA'sNovember 21st 

### withdrawal ofits Expert Witness, the Respondent filed a Supplemental Reply to the Complainant's Opposition to Respondent's Motionto Compel. On Dec 15, 2016, 

### at the Continued Motion Conference, this Court partially granted the Respondent's Motion to Compel and Ordered "the FAA to disclose to the Respondent, in detail, howthe FAA calculated its proposed civil penalty, which is atotal of
... $11,000 

### on the violation that it alleges that the Respondent committed" See Exhibit A, Transcript of Teleconference on December 15, 2016, 

### Page 64, 

### Lines 5-16. 

### After confirming the FAA's ability to comply with the Order, this Court further Ordered that "on or before January 17, 2017, 

### the Court is directing [the FAA] to provide that information." See Exhibit A, Transcript ofTeleconference on December 15, 2016, 

### Page 63, 

### Lines 16-22 

### and Page 67, 

### Lines 2-6. 

### On January 17, 2017, 

### as of5:00 

### pm, Pacific Standard Time, the FAAhas failed to complywiththis Court's Orderto Produce. Comes now, this is the FAA'sthird failure to comply with an Orderissued by this Court. The FAA failed to appear at the February 9, 2016 

### Scheduling Conference. This failure caused the Scheduling Conference to be rescheduled for April 14, 2016, 

### a nine MOTION TO DISMISS Inthe Matter ofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 CaseNo. 2015WP910090 Page 6of7 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, W A 9920I (509) 624-3020weekdelay. The FAAfailed to disclose Expert Witnesses by June 30,2016. This failure caused the General Discovery deadline to be extended from August 30, 2016 to September 16, 2016, a two week extension. It remains to be seen what scheduling turbulence results from the FAA'scurrentfailure. The FAA's repeated failures to meet deadlines and to comply with this Court's Orders have caused nearly three months' delay; more when this current matter is resolved. These failures have unfairly prejudiced the Respondent and violated its rights to Due Process and Discovery. These failures have necessitated what should have been unnecessary pleadings. These unnecessary pleadings have caused unnecessary attorney's fees. Pursuant to 14 C.F.R § 13.218(f)(2) "Motion to Dismiss", the Respondent respectfullyMoves for Dismiss.

CONCLUSION Forthe foregoing reasons, this Court shouldgrant the Respondent's Motionto Dismiss.

RESPECTFULLY SUBMITTEDthis 17'11 day ofJanuary, 2017.

MOTIONTO DISMISS Inthe Matter ofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 CONLIN, MALONEY & MILLER Benjamin L. Wybome ,WSBA# 50070 Attorney for Respondent 421 W. Riverside Avenue, Suite 911 Spokane, WA 99201 (509) 624-3020

Page 7 of7 Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 9920I (509) 624-3020CERTIFICATE OF SERVICE
Ihereby certifythatthe foregoing Motionto Dismiss has been servedviaU.S. Priority Mail onJanuary 17, 2017to the following: Judge 

### J. E. Sullivan US. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Ave, SE (Ell-310) Washington, DC 20590 Phone: 202-366-6941 Fax: 202-366-7536 FederalAviationAdministration Attention: Hearing DocketClerk, AGC-430 WilburWright Building- Suite 2W1000 800 Independence Avenue, S.W. Washington, DC 20591 Fatimah Stokley,Attorney FederalAviationAdministration Office ofthe ChiefCounsel EnforcementDivision, WesternTeam P.O. Box 920007 Los Angeles, CA 90009-2007 Fax: (310) 725-6816 DATEDthis 17'h day ofJanuary, 2017

Cindy ert Legal Assistant 421 W. Riverside Avenue, Suite 911 Spokane, WA 99201 (509) 624-3020EXHIBITA TranscriptofTe1econference onDecember 15,2016 ExtractofPages 1and 64-67

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

IN THE MATTER OF: FELTS FIELD AVIATION FDMS No. FAA-2015-3307 1

Respondent



## RF~'"'J::IVED Thursday, December 15, 2016 DEC 302016 ht:J-\r\11\IG DOCKET

The teleconference convened, pursuant to notice, at 1:30 p.m.
BEFORE: THE HONORABLE J.E. SULLIVAN, U.S. Administrative Law Judge

(202) 234.4433 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234--4433

MOTION TO DISMISS EXIITBIT A Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 99201 In the Matter ofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 CaseNo. 2015WP910090 Page I ofS (509) 624-3020EXHIBITA Transcript ofTeleconference onDecember 15,2016 ExtractofPages I and 64-67 ' '

64
1 Now, the FAA certainly has a -- and 2 maybe I could do it differently, because we're 3 talking about a motion to compel. Give me a 4 minute as I look at this material again. 5 I think I can short change thi,s, 6 excuse me. Based on the materials that the 7 parties have provided in the arguments that have 8 been presented, I 1m going to grant the 9 Respondent's motion to compel discovery partially 10 at this time. 11 And I will direct the FAA to disclose 12 to the Respondent, in detail, how the FAA 13 calculated its proposed civil penalty, which is a 14 total of-- have to do that right away-- $11,000 15 on the violation that it alleges that the 16 Respondent committed. 17 And the calculation information that 18 is disclosed by the FAA should include and 19 address all factors in affecting the sanction 20 which should be 1 and is not limited to, the 21 nature of the violation, including how safety was 22 affected, whether the violation was inadvertent

(202) 2344433

MOTION TO DISMISS EXHIBIT A Inthe MatterofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE JSLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 (202) 234"4433

Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, WA 99201 Page 2 ofS (509) 624-3020EXHIBITA TranscriptofTeleconference on December 15, 2016 ExtractofPages 1 and 64-67

65
1 and not deliberate, the attitude of the 2 Respondent as the alleged violator, the degree of 3 hazard, the action taken by the employer or other 4 authority regarding the alleged violation, the 5 use of certificate. 6 The FAA should also identify what, if 7 any, decisional law it utilized in calculating 8 and coming to the proposed civil penalty. 9 It should identify whether or not it 10 utilized multiple violations or acts in 11 calculating the proposed civil penalty, as well 12 as considering the Respondent's ability to absorb 13 the sanction, whether the violation was 14 voluntarily reported, and whether the Respondent 15 took corrective action, and whether such action 16 was included in the calculation of the penalty. J.7 If there were any mitigating, 18 extenuating, or aggravating factors that the FAA 19 took into consideration in calculating the 20 proposed penalty, the FAA should say so and 21 identify them specifically. 22

(202) 234-4433

MOTION TO DISMISS EXHIBIT A In the MatterofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 The FAA should also identify any

NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RtlODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-4433

Conlin, Maloney & Miller 421 W. Riverside Ave., Ste 911 Spokane, W A 9920I Page 3 of5 (509) 624-3020EXHIBITA Transcript ofTeleconference onDecember 15, 2016 ExtractofPages 1 and 64-67

66 1 exculpatory evidence it had in its possession, or 2 does have in its possession at this time, that 3 could be utilized by the Respondent in defending 4 against the proposed civil penalty. 5 When do you think you can get that 6 information out, Ms. Stokley, to the Respondent? 7 MS. STOKLEY: Your Honor, it 1 s going 8 to take some time for me to meet with the Drug 9 Abatement Off'ice and coordinate a response to 10 that

-- is this an order

-- to your order? And 11 so -- 12 JUDGE SUIJLIVA..'!\f: Yes. I 1m directing 13 you to provide this information. And it really 14 is the kind of information that should be 15 disclosed in any of these cases. 16 MS. STOKLEY: Your Honor, I can 17 provide those when

-- 1 1m looking at my calendar 18

-- by the week of the 16th of January. 19 JUDGE SULLIVAN: Well, I 1m looking at 20 that calendar time as well. So the 16th is a 21 holiday. Can you have this information provided 22 to the Respondent by January 17, 2017?

(202) 2344433

MOTION TO DISMISS EXHIBITA In the Matter ofFelts FieldAviation, Inc. DocketNo. FAA-2015-3307 Case No. 2015WP910090 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE

.. N.W. WASHINGTON, D.C. 20005-3701 (202) 234-4433

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67
1 MS. STOKLEY: Yes, Your Honor. 2 JUDGE SULLIVAN: So noted. So as of 3

-- on or before January 17, 2017, the Court is 4 directing you to provide that information. The 5

**Court~** is denying the motion to compel, in part, 6 for disclosure of the actual EIR. 7 I would agree that, Ms. Stokley, that
s this particular information can be deemed as a 9 work

-- under the work product privilege, but it 10 is disclosable in a different way, as the Court 11 has directed it to be disclosed. 12 As a result, I'm denying the 13 Respondent's request for an on-camera review of 14 the EIR. I don 1 t think that 1s necessary. I'm 15 also finding that the EIR is not fully 16 disclosable simply because Mr. Wells was 17 ·potentially identified as an expert witness and 18 is now withdrawn. 19 I understand what the Respondent 1s 20 argument is about that, but I simply don 1 t 21 completely agree with the Respondent as to the 22 scope of how much disclosure may be invoJ.ved,

(202) 234-4433

MOTIONTO DISMISS EXHIBITA Inthe Matter ofFelts Field Aviation, Inc. DocketNo. FAA-2015-3307 CaseNo. 2015WP910090 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 132.3 RHODE ISLANDAVE,, N.W. WASHINGTON, D.C. 20005"3701 (202} 234-4433

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